ENERGY BUSINESS LAW

Key Takeaways | The Current State of the US P3 Market

by McDermott Will & Emery | Sep 29, 2022 | Power Markets, Project Development and Finance, Renewables

On September 28, McDermott Partner Emeka Chinwuba and Star America Infrastructure Partners’ Michael Rueger and Kamil Seidl discussed the effects of the Infrastructure Investment and Jobs Act (IIJA) on the P3 market and what impact the Inflation Reduction Act will have on future energy projects. They also provided an outlook on secondary and brownfield assets and addressed barriers to bridging the funding gap.

Below are key takeaways from the discussion:

1. There has been an increase in capital raise activity amongst financial sponsors in anticipation of a robust pipeline of infrastructure projects as the impact of IIJA begins to permeate through the US P3 market.

2. Progressive P3 procurement models continue to gain traction as total procurement and project costs can be significantly reduced, especially since the risks can be better defined before pricing is locked in.

3. Political risks remain a concern, especially for user-fee-based infrastructure projects, and the need for P3 champions on a project-by-project basis remains essential to the growth and continued diversification of the market.

To access past webinars in the Navigating the New Energy Landscape series and to begin receiving Energy updates, including invitations to the webinar series, please click here.

Federal Government Approves First $900 Million Toward Development of a National Network of Fast-Charging Electrical Vehicle Stations

by Carl J. Fleming, Princess Fuller and Jake Howell | Sep 19, 2022 | Project Development and Finance, Renewables

The National Electric Vehicle Infrastructure (NEVI) Formula Program, sponsored by the US Department of Transportation’s (DOT) Federal Highway Administration (FHWA), will provide $5 billion in funding for states to establish an interconnected network of electric vehicle (EV) charging stations over the next five years beginning in 2022, with $1 billion in funds being dispersed each of those five years. This funding comes out of the much larger $1 trillion bipartisan Infrastructure Investment and Jobs Act, which passed back in November 2021.

KEY TAKEAWAYS

The EV charging stations must be (1) nonproprietary, (2) publicly available or available to authorized commercial motor vehicle operators from more than one company and (3) be located along interstate highways. The FHWA must distribute the NEVI Formula Program funds made available to it each fiscal year, through 2026, so that each state receives an amount equal to the state FHWA funding formula determined by 23 U.S.C. § 104. To receive funding, each state must submit a plan describing how it intends to distribute the NEVI Formula Program funds.

A DEEPER DIVE

On September 14, 2022, the Biden-Harris administration announced approval of 35 states’ plans, amounting to the first $900 million in US federal funding to build EV charging stations under the NEVI Formula Program. The approved funding comes from the allotted NEVI Formula Program funds to be disbursed throughout fiscal years 2022 and 2023. The FHWA expects to complete its review of the remaining states’ plans by September 30, 2022.

In addition, the Biden-Harris administration signaled that there would be an allotment of $2.5 billion in grants to be utilized for funding EV charging infrastructure in economically disadvantaged communities, rural towns and urban neighborhoods. Further, the recently passed Inflation Reduction Act of 2022 earmarks $3 billion for not only widespread EV adoption, but also ensuring that charging stations are located in underprivileged communities.

The NEVI Formula Program funding is designed to help build up to 500,000 EV chargers across approximately 53,000 miles of highway throughout the country. The proposed guidelines would require states to build at least one four port fast-charging station every 50 miles (some states may receive exemptions for a limited number of rural areas), with each station located within one mile of an off ramp. The program is designed to ease EV purchasers’ anxiety surrounding range capability on long road trips throughout the United States.

State DOTs were permitted to begin projects prior to approval. The recently approved funds may be used to reimburse the states for funds already spent on their respective projects, in accordance with their submitted plans. Eligible costs under the NEVI Formula Program includes almost any cost associated with getting chargers in the ground.

States and Territories with approved plans include Arizona, Arkansas, California, Colorado, Connecticut, District of Columbia, Delaware, Florida, Georgia, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Puerto Rico, Rhode Island, South Dakota, Tennessee, Utah, Washington and Wisconsin.

States that have submitted [...]

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Key Takeaways | Tax Credit Bonuses for Low-Income and Coal, Oil and Gas Energy Communities

by Heather Cooper and Philip Tingle | Sep 16, 2022 | Natural Gas, Project Development and Finance, Renewables, Tax

On September 13, McDermott Partners Heather Cooper and Philip Tingle provided a detailed overview of the bonus tax credits under the Inflation Reduction Act of 2022 for projects satisfying low-income thresholds or built-in energy communities with ties to coal, oil and natural gas, including the technical requirements for each bonus and how these new rules will impact deal pipeline, planning and negotiations.

Below are key takeaways from the discussion:

1. There is an annual capacity limitation of 1.8 gigawatts direct current for low-income bonuses. It’s unknown whether this capacity will be allocated to projects on a first-come, first-served basis or shared amongst all applicants annually in the event capacity is reached. The Internal Revenue Service must provide guidance on this point within 180 days of enactment.

2. Projects that fail to satisfy relevant low-income/poverty metrics are subject to recapture (with a one-time opportunity to cure). It remains to be seen whether circumstances outside taxpayer control (e.g., local economic improvement) will trigger recapture.

3. At present, it is difficult to transact on the energy community bonus-based projects located in brownfield or MSA/non-MSA because of a lack of guidance. Projects located in census tracts with retired coal fired EGUs or coal mines, however, can be transacted based on the statute alone.

4. Projects will require researching, tracking and targeting areas where coal mines closed, coal fired EGUs retired and (after relevant guidance is released) brownfields are located.

To access past webinars in the Navigating the New Energy Landscape series and to begin receiving Energy updates, including invitations to the webinar series, please click here.

Key Takeaways | Standalone Storage and ITC: Storage Finally Gets to Stand Alone

by McDermott Will & Emery | Sep 9, 2022 | Uncategorized

The passage of the landmark Inflation Reduction Act of 2022 (IRA) is a long-awaited and critical win for standalone energy storage system projects. On September 7, during the latest webinar in our Navigating the New Energy Landscape series, McDermott Partners Carl Fleming and Philip Tingle hosted Chris McKissack, CEO of GlidePath, and Caitlin Smith, senior director of regulatory, external affairs and ESG at Jupiter Power, for a discussion on the new investment tax credit (ITC) for standalone energy storage under the IRA and its impact on the energy storage market.

Below are key takeaways from the discussion:

1. Impact of the IRA on business models: The developers and operators who have been following a sniper approach to storage projects for years are certainly benefiting from the tax credits provided by the IRA to the standalone storage business. The IRA puts experienced participants in the standalone storage business on a level playing field, further justifies their existing business plans and provides a stronger booting for opportunities already in the pipeline. With the introduction of the standalone ITC, we expect to see an increase in competition and new participants in the business, as well.

2. Impact of decoupling from wind and solar: Before the IRA, there was always a question about whether a storage system could be coupled with or located near a production tax credit (PTC) project (such as a wind project) and be eligible for the ITC independent of wind or PTC resources. The IRA answered the question, and the answer is yes. Under the IRA, energy storage market participants are now able to decouple battery storage from other renewable projects, as the requirement to charge 75% of the time from solar is removed when paired with other technologies. This gives energy storage projects the ability to operate more optimally and capture additional revenue or savings. From a commercial perspective, it has yet to be seen whether the potential storage assets will be truly standalone with separate revenue and ITC monetization or whether transferability will be the primary source. The storage business is much more than its buy low and sell high mentality; it is a new and flexible resource that helps with congestion, stability and voltage support and can respond in less than three seconds.

3. Impact of the IRA on standalone storage, transmission and project development: The ITC and its reduction of 30% to the capital cost of equipment will further increase the viability of storage to enable developers to offer grid services to utilities at attractive prices. This is crucial to replacing the country’s fleet of fossil fuel plants because it integrates the increasing amounts of wind, solar and hydropower that is being transmitted hundreds of miles without jeopardizing grid reliability. The IRA provides incentives for storage projects to site and plug in the energy communities and to construct and build out the storage [...]

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Key Takeaways | A Deep Dive into Wage and Apprentice, Domestic Content, Transfer and Direct Pay

by Heather Cooper and Philip Tingle | Sep 2, 2022 | Renewables, Tax, U.S. Congress

On August 31, McDermott Partners Heather Cooper and Philip Tingle provided a detailed review of the wage and apprentice, domestic content, transferability and direct provisions of the Inflation Reduction Act of 2022. They discussed the technical requirements for each of the new sections and offered insight into how these new rules will impact the deal pipeline, planning and negotiations.

Below are key takeaways from the discussion:

The extension and expansion of the existing ITC and PTC by the Inflation Reduction Act (IRA) come with additional requirements, a critical component of which is the all-new wage and apprenticeship requirement (W+A) for 1MW or greater energy projects. Because of both the newness of the rules and the need for additional IRS guidance, the beginning construction rules are going to have continued relevance while taxpayers wait for the market to sort out how it will address W+A compliance.
For projects beginning construction after the W+A guidance, taxpayers must consider how they will monitor W+A compliance, in particular with respect to wages paid to and labor provided by employees of contractors and subcontractors. Taxpayers should consider what types of covenants and representations they will require of contractors, how to draft indemnities to allocate the risk of default, costs to cure failures to meet W+A, and in the worst case the loss of 80% of the ITC or PTC.
There is limited direct pay available to tax-exempts, government entities, Indian tribes, and the like, except for the credits for clean hydrogen, carbon capture and advanced manufacturing credits—which are available to non-exempt taxpayers.
As an alternative to direct pay, taxpayers may elect to transfer their credits for cash. Those proceeds are tax-free, generally with no cap, phase-out, limitation or exception. For partnerships, the election is made at the partnership level, which creates planning complexities on who will control elections and make indemnities, and how remaining partnership items will be taxed and allocated. Taxpayers will need to plan around such situations, and transferability likely won’t simplify the financing of renewable projects.

To access past webinars in the Navigating the New Energy Landscape series and to begin receiving Energy updates, including invitations to the webinar series, please click here.